International Investment Law and Comparative Public Law

Edited by Stephan W. Schill

Innovative examination of the relationship between international investment arbitration and judicial review of governmental conduct from a comparative public law perspective

Clarifies the linkages between investment disputes and comparative administrative law concepts

Features in-depth comparative analysis of the major issues in international investment law: expropriation, fair and equitable treatment, national treatment, umbrella (sanctity of contract) clauses, and full protection and security

Features comparative analysis of procedural challenges that arise both in investment disputes and in comparative administrative procedures, developing suitable procedural models

International Investment Law and Comparative Public Law

Edited by Stephan W. Schill

Description

Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (mainly as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration.

This has been recognized in some academic writing and several awards, where reference to national administrative law concepts and principles of international law-based judicial review of governmental action, such as
international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties. In-depth conceptualization is however often lacking. The current study is the first, pioneering effort to bring these under-developed ad hoc references to comparative and international administrative law concepts into a deeper theoretic and systematic framework.

The book thus intends to develop a 'bridge' between treaty-based international investment arbitration and comparative administrative law on both a theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause) and major procedural principles will be compared with their
counterpart in comparative public law, both on the domestic as well as international level. That 'bridge' will allow international investment law to benefit from the comparative public law experience, which could enhance its legitimacy, its political acceptance, and its ability to develop more finely-tuned interpretations of central treaty obligations.

International Investment Law and Comparative Public Law

Edited by Stephan W. Schill

Table of Contents

Part I - Concepts and Foundations 1. International Investment Law and Comparative Public Law - An Introduction, Stephan W. Schill2. Minimum Standards of Procedural Justice in Administrative Adjudication, Giacinto della Cananea3. Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionality, Benedict Kingsbury and Stephan W. SchillPart II - Investor Rights in Comparative Perspective 4. The Concept of Indirect Expropriation in Comparative Public Law - Searching for Light in the Dark, Markus Perkams5. Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law, Stephan W. Schill6. Full Protection and Security, Helge Elisabeth Zeitler7. Cain &
Abel: Congruence and Conflict in the Application of the Denial of Justice Principle, Ali Ehsassi8. The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO, Jurgen Kurtz9. Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law, Freya Baetens10. Umbrella Clauses as Public Law Concepts in Comparative Perspective, Stephan W. Schill11. Transfer of Funds: The Interaction between the IMF Articles of Agreement and Modern Investment Treaties: A Comparative Law Perspective, Abba KoloPart III - Comparative Administrative and Comparative Constitutional Law on Selected Issues 12. State Responsibility and Comparative State Liability for Administrative and Legislative Harm to
Economic Interests, Irmgard Marboe13. Legitimate Expectations and Informal Administrative Representations, Hector A. Mairal14. Revocation and Cancellation of Concessions, Operating Licenses and Other Beneficial Administrative Acts, Kim Talus15. Public-Private Partnerships: Award, Performance and Remedies, Catherine Donnelly16. Economic Emergency Powers: A Comparative Law Perspective, Christina Binder and August Reinisch17. Property Protection and Protection of Cultural Heritage, Federico Lenzerini18. Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context, Christian Tietje and Karoline Kampermann19. Comparative Taxation Procedure and Tax Enforcement, Paul B. StephanPart IV - Dispute Settlement, ArbitralProcedure, and Remedies 20. Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law, Gus Van Harten21. Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law, Chester Brown22. The Need for Public Law Standards of Review in Investor-State Arbitrations, William Burke-White and Andreas von Staden23. Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View, Anne van Aaken24. Comparative Compensation for Expropriation, Borzu Sabahi and Nicholas J. Birch25. Transparency and Representation of the Public Interest in Investment Treaty Arbitration, Alessandra Asteriti and Christian J. Tams

International Investment Law and Comparative Public Law

Edited by Stephan W. Schill

Author Information

Stephan Schill is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He is admitted to practice as a The Multilateralization of International Investment Law.

International Investment Law and Comparative Public Law

Edited by Stephan W. Schill

Reviews and Awards

"I advise everybody interested in the topic to rummage through the book. It includes many contributions that would more than deserve to be mentioned...I am confident it will spark debate in many areas of international investment law and provide somewhat of a blueprint for subsequent comparative analyses that aim at informing public international law."
--Andreas Kulick, Global Law Books, www.globallawbooks.org